STATE OF NEW YORKCOUNTY COURT COUNTY OF MONROE

THE PEOPLE OF THE STATE OF NEW YORK DECISION AND ORDER

-vs- Ind. No.: 2001-0490

RENE BAILEY a/k/a RENEE BAILEY,

Defendant.

Appearances:

For the People: SANDRA DOORLEY, ESQ., DISTRICT ATTORNEYMatthew Dunham, Esq., Assistant District AttorneyAndra Ackerman, Esq., Assistant District Attorney47 South Fitzhugh StreetRochester, New York 14614

For the Defendant: ADELE BERNHARD, ESQ.Adjunct Professor and Supervising AttorneyNew York Law SchoolPost-Conviction Innocence ClinicNew York Law School Legal Services, Inc.185 West Broadway, S-928New York, New York 10013

PIAMPIANO, J.

The Defendant, having been convicted upon a jury verdict of Murder in the Second

Degree (Penal Law § 125.25 [4]), moved this Court for an order, pursuant to Criminal

Procedure Law § 440.10 (1) (g) and (1) (h), vacating the judgment of conviction and

sentence or, in the alternative, a hearing on the matter. The Defense request was premised,

in large part, on the assertion that the Defendant was convicted on the basis of

uncorroborated evidence that is now widely disputed in the medical community. The

Defense claimed that new medical and scientific research, relative to the existence and

characteristics of Shaken Baby Syndrome, has undermined the reliability of the verdict.

In addition to new medical and scientific evidence, the Defense claimed the

existence of new exculpatory evidence from a daycare provider about statements made by

a child witness, who was interviewed by the police, but did not testify at trial. The

Defense also asserted an ineffective assistance of counsel claim.

The People opposed the relief sought in the Defendant’s application, on the

grounds that additional medical and expert witness testimony about Shaken Baby

Syndrome is not “new evidence” pursuant to CPL § 440.10 (1) (g); that the proposed,

newly discovered evidence, some of which was available prior to the Defendant’s trial, is

cumulative; and that it is not probable that the admission of such evidence at a subsequent

trial would result in an acquittal. The People further asserted that certain evidence which

the Defense would offer at a subsequent trial constitutes inadmissible hearsay; that the

Defendant did not act with due diligence in bringing her claims of newly discovered

evidence; and that the Defendant did not establish the ineffective assistance of counsel.

Upon consideration of the parties’ respective submissions and oral arguments, the

Court granted the Defense request for a hearing with respect to, inter alia, the limited

issues of whether the proffered expert witness testimony concerning head injuries in

children, and whether the proffered testimony concerning Sandra Hennessy’s observations

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of Cameron Burnside’s behavior, constitute“new evidence” as that term is contemplated

by Criminal Procedure Law § 440.10 (1) (g).

The hearing commenced on April 17, 2014 and spanned three weeks, during which

time both parties presented the testimony of numerous witnesses and offered a multitude of

exhibits in support of their respective positions. Upon the close of proofs, the Court

directed each party to submit proposed Findings of Fact and Conclusions of Law. The

Court received written submissions on behalf of the respective parties.

Now, upon consideration of the credible evidence adduced at the hearing of this

matter, the Court hereby makes the following Findings of Fact.

FINDINGS OF FACT

THE DEFENDANT’S TRIALDecember 2001

On the morning of June 6, 2001, two and a half year old Brittney Sheets was left in

the care of the Defendant, who operated a daycare business at her home. Prosecution

witnesses testified that Brittney did not exhibit any signs of injury prior to being dropped

off at approximately 8:30 a.m. that day. At approximately 3:15 p.m., Brittney’s father,

David Sheets, received a telephone call from the Defendant, who said that Brittney had

fallen off of a bench and bumped her head. The Defendant further advised Mr. Sheets that

he needed to get to the daycare quickly. Mr. Sheets responded, and found Brittney to be

unresponsive. The Defendant told him that, while she was in the bathroom, Brittney had

fallen from a chair in the playroom.

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Brittney’s parents took her to the office of her pediatrician, Jack Finnell, M.D. Dr.

Finnell called for an ambulance, and Brittney was taken to Strong Memorial Hospital.

Although she received treatment in the pediatric intensive care unit, Brittney was

pronounced dead the following day.

At the Trial, Dr. Finnell testified, as follows:

Q. Doctor, are you familiar with the term Shaken Baby Syndrome or Shaken BabyImpact Syndrome?

A. Yes.

Q. How are you familiar with that?

A. Throughout medical school, residency, reading about it in journals, experiencing acouple cases of it while in residency, mainly seeing those kids in the Intensive CareUnit after the fact.

Q. Doctor, based on your training and experience, did the injuries that you suspectedthat were ultimately borne out at the hospital, were those injuries consistent with afall from a chair on to a carpeted floor?

A. No.

Q. Why not?

A. Again, I hark back to someone, one of the attendings when I was in medical schoolas well as reading it in different textbooks and different journals that it is rare and,in fact, never has been seen to have a child fall from less than ten feet orapproximately a second story window result in a serious brain injury.

Q. And, Doctor, based on your training and experience, do you have an opinion as towhether or not the injuries that Brittney suffered were consistent with a shaking ora shaking impact?

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A. I do.

Q. What is that?

A. My opinion is based on the fact that there was no external signs of trauma; basedon what I know of the Medical Examiner’s report that these injuries could not havebeen suffered any other way than a Shaken Child Syndrome.

At the trial, Frank Maffei, M.D., a pediatric intensive care physician at Strong

Memorial Hospital who treated Brittney on June 7, 2001, testified that, “I believe this child

suffered non-accidental brain injury and I believe the mechanism was from violent

shaking.” Dr. Maffei based his opinion on a “constellation” of findings that included the

consideration of a “history.” Dr. Maffei testified that he had noted in his medical chart

that, in addition to shaking, there may have been an impact. As to the possibility that

Brittney’s injuries could have been caused by a fall, Dr. Maffei testified that the forces

occurring in a fall “usually are not” or are ,“rarely, if ever” life threatening.

Upon examination of Brittney’s eyes at approximately 7:30 a.m. on June 7, 2001,

Dr. Maffei observed diffuse retinal hemorrhages in both eyes, with multiple areas of

bleeding. Dr. Maffei further testified that an ophthalmologist later concurred with those

findings. On cross-examination, Dr. Maffei testified that impact occurs along with shaking

in the majority of cases, and that shaking with impact, generates greater forces than

shaking alone. Dr. Maffei acknowledged that he was familiar with a study conducted by

Dr. John Plunkett, published in 2001, in which Dr. Plunkett concluded that short falls can

be fatal to children.

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At the Trial, Ana Rubio, M.D., testified on behalf of the Prosecution regarding the

autopsy that she had conducted on Brittney. Dr. Rubio noted bruises on Brittney’s throat

and abdomen, and the inside of Brittney’s scalp. She “could see only one sign of external

trauma in the back of the head on the right side and a little contusion of the cerebellum

underneath that area . . . that would be clinically unsignificant [sic].” Dr. Rubio testified

that Brittney had suffered a subarachnoid hemorrhage, as well as a subdural hemorrhage in

the back and middle of her head. There was a contusion of the back portion of the brain

itself, and there was blood in the space between the dura matter and the eye. Further

examination revealed retinal hemorrhages in both eyes.

Dr. Rubio testified that Brittney had suffered the kind of massive trauma that one

might see as a result of being in a car accident. She described Brittney’s injuries as

resulting from “Shaken Impact Baby Syndrome” and testified that the acceleration and

deceleration forces in shaking a child will be greater if the child’s head “is suddenly

stopped by impact against a surface.” Dr. Rubio explained Shaken Impact Baby Syndrome

as, “a constellation of findings, pathologic findings that they are produced in the setting of

a small child being shaken and shaken meaning not only shaking the baby, but maybe

shaken plus sudden deceleration when the body is put against a soft object.” Dr. Rubio

testified that the cause of death in this case was, “multiple injuries to the central nervous

system produced by rotational forces,” and that, “the most likely explanation” was that

Brittney died as a result of “shaking and impact.”

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When asked to state the constellation of injuries that she would need to find in

order to make a diagnosis involving the Shaken Impact Baby Syndrome, Dr. Rubio

testified:

In the medical literature the three findings that are usually present aresubdural hemorrhage which is the blood underneath the dura orsubarachnoid hemorrhage or both, a regular [sic retinal] hemorrhage, andcerebral edema which is swelling of the brain.

Dr. Rubio found all of those injuries in Brittney’s case, along with extensive

hemorrhage in the nerves around the spinal cord.

Dr. Rubio further testified that, before making a diagnosis of Shaken Impact Baby

Syndrome, she considered the history regarding the cause of the injuries including, in this

case, the allegation that Brittney jumped or fell from a chair that was about 18 inches high.

It was Dr. Rubio’s opinion that Brittney’s injuries were inconsistent with being caused by

such a fall. On cross-examination, when Dr. Rubio was asked whether it was possible for

Brittney to have sustained the injuries as a result of falling from a chair, Dr. Rubio

indicated that it was “extremely unlikely.”

The Defense called Robert Greendyke, M.D., as an expert witness at the Trial. Dr.

Greendyke testified that, in preparation for his testimony, he reviewed Dr. Finnell’s

reports, reports of Brittney’s visit to the emergency room, ambulance records, and the

Medical Examiner’s report. He also examined microscopic tissue sections that were

prepared in conjunction with the autopsy by the Medical Examiner’s Office, and he

reviewed reports pertaining to CT and MRI scans performed on Brittney.

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Dr. Greendyke testified that at least some of the blood observed on Brittney’s brain

during the autopsy was the result of post-mortem or peri-mortem bleeding, and that at least

some of the retinal hemorrhaging also occurred post-mortem, or while Brittney was at the

hospital. Dr. Greendyke further testified that some of the blood pigment on the brain was

caused by a previous fall that Brittney allegedly had sustained in December of 2000, when

she was in the Defendant’s care.

According to Dr. Greendyke’s testimony, there was an absence of axonal injuries,

which indicated that Brittney’s injuries were not the result of Shaken Baby Syndrome.

Based upon the bleeding and bruising on the surface of the brain, Dr. Greendyke

concluded that Brittney’s death resulted from a “violent impact” to her head. He noted

that there was “a bruise on the edge of the cerebellum which is a portion of the brain in the

back lower central portion of the head,” which was “evidence of the head while in motion

having struck something,” and that Brittney’s injuries were consistent with a fall. On

cross-examination, Dr. Greendyke testified that Brittney’s injuries could have been the

result of her falling from a height of 18 inches onto a carpeted floor, “without question.”

THE POST-CONVICTION HEARINGApril 2014

At the hearing, the Defense case commenced with the testimony of Peter Stephens,

M.D. Based on the credible evidence adduced at the hearing, the Court finds Dr. Stephens

to be an expert in the area of pathology. In that regard, the Court credits Dr. Stephens’

testimony that the recognition of the danger of falling has changed since 2001. Dr.

Stephens explained that, over the last ten years, there has been a progressive change in the

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attitude toward pediatric head trauma in at least three areas. First, there now is general

agreement that short distance falls can cause death. Second, since 2001, retinal

hemorrhages have been shown to result from increased pressure inside of the skull, rather

than any type of rotational injury. Third, there is a discrepancy in the classical shaken

baby theory, with respect to the traditional thinking that shaking disrupted the bridging

veins on the surface of the brain.

Based on the credible evidence established at the hearing, the Court finds Kenneth

Monson, Ph.D., to be an expert in biomechanical engineering with respect to his

testimony. In that regard, the Court credits Dr. Monson’s testimony that the biomedical

research and literature has developed significantly since 2001, on the issue of whether

shaking, and not short falls, is likely to be the mechanism for the type of injury at issue.

That is, shaking a child hard enough to cause brain injury also would cause neck injury,

yet none was observed in this case. Further, even falls of just a few feet generate levels of

force and velocity that exceed known thresholds for brain injury, which is far more force

than an adult human can generate by shaking.

Based on Dr. Monson’s knowledge, none of the modeling attempts made since

2001 were able to establish that the violent shaking of an infant or a toddler could cause

the kind of subdural hematomas, retinal hemorrhages, brain injury, and death that were

associated with this case. Rather, every biomedical investigation that has been performed

continues to suggest that the accelerations associated with shaking are lower than what

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would be expected as necessary to cause those injuries. Significantly, nothing before 2001

would contradict that finding.

Based on the credible evidence established at the hearing, the Court finds John

Plunkett, M.D., to be an expert in the area of general and forensic pathology with respect

to his testimony. Dr. Plunkett has extensively studied the dangers of short falls to children.

A research paper published by Dr. Plunkett in 2001challenged the then-existing perception

that short falls or low velocity impacts could not cause death, by proving that “it was

wrong.” The study documented cases in which children had died from falls, and it was

discussed by expert witnesses at the Trial.

The Court further credits the testimony of Dr. Plunkett that the triad of subdural

hematoma (subdural hemorrhage), retinal hemorrhage, and cerebral edema (swelling of the

brain) was viewed as generally pathognomonic (i.e., distinctively characteristic), of

Shaken Baby Syndrome prior to the time frame of 2001-2002. Similar testimony was

given by several additional Defense witnesses: Peter Stephens. M.D., Patrick Lantz, M.D.,

and Patrick Barnes, M.D.

Dr. Plunkett described Brittney’s injuries as including a small volume acute

subdural hematoma, malignant rapid brain swelling, contusion at the base of her left

temporal lobe, and brain herniation. Dr. Plunkett testified that the combination of the

swelling and the herniation caused Brittney’s death. Based on the injuries and the history

provided, Dr. Plunkett concluded that the bruising on the back of Brittney’s head was

evidence of an impact injury. He determined that Brittney’s head was in motion and

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struck a solid object, and that her injuries were consistent with the alleged falling or

jumping from an 18 inch high chair, and hitting her head on the floor.

Based on the credible evidence established at the hearing, the Court finds Michael

Baden, M.D., to be an expert in the area of pathology with respect to his testimony. Dr.

Baden is a retired pathologist who served as the Chief Medical Examiner of New York

City, as well as the Director of the New York State Police Medico-Legal Investigations

Unit. Dr. Baden testified that he reviewed the autopsy report in this case, photographs of

the autopsy and the scene, the ambulance report, hospital records, and trial transcripts.

Referring to the autopsy report, Dr. Baden testified that Brittney’s injuries, “were

classically due to a fall.” Dr. Baden disagreed with Dr. Rubio’s conclusion that Brittney’s

injuries were consistent with rotational forces and opined that Brittney had a

coup/contrecoup injury. Dr. Baden explained that a coup injury only occurs if the moving

head strikes something. A contrecoup indicates an impact site on one area of the head and

a bruise on the brain 180 degree opposite thereto. The presence of a coup/contrecoup

injury signifies that the head had to be moving at the time that it struck the ground, which

is typical of a fall.

In Dr. Baden’s opinion, the opinions and conclusions of Dr. Rubio were

inconsistent with some of her findings. By way of example, Dr. Baden noted that the

cause of death listed in Brittney’s autopsy report was multiple brain injuries due to

rotational forces (Shaken Impact baby Syndrome) homicide. Rather than multiple brain

injuries, however, Dr. Baden noted that there were no brain injuries other than the two that

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he had previously referenced in the back of the brain and the front side of the brain, which

“are classic for a fall and don’t support the concept of shaken baby. And there is no

subdural hemorrhage, which is part of the importance of the shaken baby that she

describes.”

The Prosecution did not deny that short falls can be fatal. Rather, they countered

that fatal falls are so rare as to be inconsequential. Sandeep Narang, M.D., a pediatrician

who appeared on behalf of the Prosecution, summarized the changes in short fall literature

since 2001. He testified that short falls were better defined as five feet or less, and that

there has been better biomechanical study of the forces involved in short falls, but the

conclusion reached had been the same: that deaths from short falls are possible, but rare.

On cross-examination Dr. Narang testified that, “Yes,” the epidemiology literature

suggests that short falls can kill, although rarely. The Defense asked, “So, again, if the

doctors at this trial testified that short falls cannot cause this, that’s just wrong, isn’t it?”

Dr. Narang answered, “If they testified to that, yes, sir.” Nevertheless, Dr. Narang

conceded that in 1997, leading physicians in pediatrics were stating that the three findings

which comprised the triad were virtually unique to Shaken Baby Syndrome.

Barbara Wolf, M.D., a pathologist who appeared on behalf of the Prosecution,

opined that Brittney’s death was caused by an impact to her head, with or without shaking.

Furthermore, contrary to Dr. Rubio’s Trial testimony, Dr. Wolf did not believe that

Brittney was shaken and then placed against a soft surface, given that there was a bruise on

Brittney’s brain.

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The credible evidence adduced at the hearing established, however, the falsity of

the existing perception at the time of Trial, that short falls or low velocity impacts could

not cause death. In that regard, Dr. Plunkett’s 2001 paper included a number of cases that

were either witnessed by non-family members or by a number of adults. One case was

documented by a video which showed a low velocity impact that resulted in death. The

child in that videotaped fall was 23 months old; she was about the same height, but “a little

heavier” than Brittney.

The video depicting the fall was received, under seal, as a Court exhibit. The Court

and the parties’ respective attorneys viewed the video at the hearing. In that footage, the

23 month old girl and her older brother were playing on a plastic gym-type house in the

garage of their parents’ home. As the girl was straddling one of the rails, holding on with

her hand, she lost her grip and fell sideways. The girl’s head was about three and a half

feet above the ground when she went into a free fall and struck the ground (carpet over a

concrete garage floor). The girl first struck with her outstretched hands, and then with the

right side of her forehead. She initially was conscious, but five or ten minutes later she

had a seizure and was brought into a local hospital. The girl developed a large volume

subdural hematoma, which was surgically evacuated, but she subsequently developed

malignant cerebral edema and died. The fall occurred in 1993, but Dr. Plunkett did not

become aware of it until 2000, when he accidentally came across the incident in the U.S.

Consumer Product Safety Commission database. The Court credits Dr. Plunkett’s

testimony that the incident did not appear in the press, or anywhere else that he was aware.

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Based on the credible evidence established at the hearing, the Court finds Patrick

Lantz, M.D., to be an expert in the area of pathology with respect to his testimony. In that

regard, the Court credits Dr. Lantz’s testimony that, at the time of Trial, ophthalmologists

believed that only the acceleration/deceleration forces generated by violent shaking could

cause retinal hemorrhages. Subsequently, similar eye findings were made in relation to

crush injuries, falls, and traffic accidents. Dr. Lantz testified that, based upon his review

of the medical records and imaging studies in this case, Brittney had retinal hemorrhages

that developed while she was in the hospital.

Brian Forbes, M.D., a pediatric ophthalmologist who appeared on behalf of the

Prosecution, opined that retinal hemorrhages, including those seen in Brittney, are not

consistent with a history from a short distance fall. On cross-examination, Dr. Forbes was

asked to compare two writings of the American Academy of Ophthalmology (AAO), one

of which was printed from the AAO web site and entitled, “Shaken Baby Resources.” The

following excerpt from that writing, which dated back to 2003, was read into the record by

Defense counsel:

When extensive retinal hemorrhage accompanied by perimacular folds andschisis cavities is found in association with intracranial hemorrhage or otherevidence of trauma to the brain in an infant, shaking injury can bediagnosed with confidence regardless of other circumstances [emphasisadded].

The second writing was entitled, “Information Statement, Abusive Head

Trauma/Shaken Baby Syndrome. The following excerpt from that writing, which was

dated June 2010, was read into the record by Defense counsel:

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When extensive retinal hemorrhage accompanied by perimacular folds andschisis cavities are found in association with intracranial hemorrhage orother evidence of trauma to the brain in an infant without another clearexplanation, abusive head trauma can be diagnosed with confidenceregardless of other circumstances [emphasis added].

Dr. Forbes admitted that the relevant medical community knows far more about retinal

hemorrhages in 2014 than it did in 2001-2002.

Daniel Lindberg, M.D., an emergency room physician who was called to testify on

behalf of the Prosecution, stated his belief that the phrase, “shaken child syndrome” was an

unfortunate shorthand which could encompass impact. Dr. Lindberg also testified that

retinal hemorrhages can be caused by many different types of trauma, but the severity of

Brittney’s retinal hemorrhages was inconsistent with a fall from a height of 18 inches.

Contrary to Dr. Lindberg’s testimony, the Court finds the testimony of Julie Mack, M.D. to

be persuasive, in that the retinal hemorrhaging seen in Brittney’s eyes was consistent with

a short distance fall.

Based on the credible evidence established at the hearing, the Court finds Julie

Mack, M.D., to be an expert in the area of radiology with respect to her testimony. In that

regard, Dr. Mack testified that, while the idea that shaking caused bridging vein rupture

was widely accepted at the time of the Defendant’s Trial, it now is clear that shaking does

not generate enough force to produce a bridging vein rupture. Furthermore, Dr. Mack

reviewed Brittney’s CT scans and MRI, and concluded that the radiology in this case was

inconsistent with a bridging vein rupture.

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The Court credits Dr. Mack’s testimony that the swelling of Brittney’s brain

developed swiftly, and that it progressed while she was in the hospital. Brittney’s first CT

was performed approximately three hours after she allegedly fell. Shortly after Brittney’s

second CT, which was done around midnight, a monitor was placed into Brittney’s brain to

check the pressure; the pressure was high enough to significantly limit the amount of blood

getting into the brain. That is, the brain was not being perfused even though the heart still

was pumping. Given that the blood had to go elsewhere, there was distension in places

where blood was not ordinarily seen.

The Court credits Dr. Mack’s testimony that there was an altered blood flow

pattern, which included blood going forward into the eye, including the retinas. The

radiology was unequivocal that the hemorrhage progressed, becoming worse in the

hospital.

In Brittney’s case, there was the unusual occurrence of rapidly developing brain

swelling. Blood seen at the autopsy might have represented a natural progression, rather

than simply trauma. Dr. Mack summarized:

So, really the summary of the imaging is we have severe, rapidly developingbrain edema, progressing to brain death in the course of a day, associatedwith only a small amount of extra-axial hemorrhage. The contention is analleged fall injury.

Dr. Mack acknowledged that radiology cannot distinguish between an injury that

was accidental, versus an injury that was caused intentionally. Radiology can, however,

provide the basis for findings that are consistent, or inconsistent with the provided clinical

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history. In this case, the radiology was consistent with a small amount of bleeding and a

contrecoup injury, such as a short distance fall from a chair.

Based on the credible evidence established at the hearing, the Court finds John

Galaznik, M.D., to be an expert in the area of pediatrics with respect to his testimony. Dr.

Galaznik testified regarding the change in opinion of the American Academy of Pediatrics,

regarding head injury in children. At the hearing, Dr. Galaznik was questioned relative to a

2001 article published in Pediatrics, the official journal of the American Academy of

Pediatrics, entitled, “Shaken Baby Syndrome: Rotational Injuries – Technical Report.”

Consistent with the contents of that article, Dr. Galaznik, as a pediatrician, understood that

it was not possible for the constellation of injuries at issue to occur with a short fall.

In 2009, the American Academy of Pediatrics (AAP) published an article entitled,

“Abusive Head Trauma in Infants and Children,” in which it was acknowledged that

injuries from accidental and abusive causes overlap. Further, the Academy removed the

claim that short falls do not cause symptoms like those observed in Brittney Sheets. The

abstract contained in the 2009 article states, in part:

Shaken baby syndrome is a term used often by physicians and the public todescribe abusive head trauma inflicted on infants and young children. Although the term is well known and has been used for a number ofdecades, advances in the understanding of the mechanisms and clinicalspectrum of injury associated with abusive head trauma compel us to modifyour terminology to keep pace with our understanding of pathologicmechanisms. Although shaking an infant has the potential to causeneurologic injury, blunt impact or a combination of shaking and bluntimpact cause injury as well.

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In 2010, the American Academy of Pediatrics published a clinical report, entitled,

“The Eye Examination in the Evaluation of Child Abuse,” which opened with the

statement:

Retinal hemorrhage is an important indicator of possible abusive headtrauma, but it is also found in a number of other conditions.

The Court credits Dr. Galaznik’s testimony that said statement represented a significant

change from the AAP’s 2001 position. That is, in 2001, retinal hemorrhages were

presumed to indicate rotational head injury. By 2010, it was recognized that retinal

hemorrhages could have multiple causes and be present in many situations. Therefore,

retinal hemorrhages are non-specific.

Based on the credible evidence adduced at the hearing, the Court finds Patrick

Barnes, M.D., to be an expert in the area of pediatric neuroradiology with respect to his

testimony. Dr. Barnes reviewed current research and scientific literature regarding child

abuse, Shaken Baby Syndrome, and the causes of head and brain injury in children. He

outlined the research challenges, such as the circularity of many research designs.

Dr. Barnes stated his opinion, to a reasonable degree of medical certainty, that the

findings in this case were more consistent with an impact injury than with a shaking

mechanism without impact. Moreover, the findings were consistent with a fall from an 18

inch chair, according to the current, best available knowledge and science. The Court

credits Dr. Barnes’ testimony that the current, best available knowledge and science that

led him to that conclusion was not available in 2001.

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John Waldman, M.D., a pediatric neurosurgeon who testified on behalf of the

Prosecution, also stated that there was no indication of a torn bridging vein in this case. Dr.

Waldman explained, however, that a child who dies as a result of a short fall will suffer

different injuries than those suffered by Brittney. The most common is an epidural

hematoma, which acts as a space occupying lesion. When such an injury is sustained, there

is slow bleeding between the dura and the skull, which expands and eventually crushes the

brain until it dies. While an epidural hematoma is expanding, the victim may have a lucid

interval. Dr. Waldman testified that epidural hematomas have been known to cause death,

“as long as people have been falling down.” However, without meaningful explanation,

Dr. Waldman summarily concluded that Brittney Sheets did not suffer an epidural

hematoma.

Two other injuries that Dr. Waldman testified might be suffered in a fatal, short fall

are a subdural hematoma acting as a space occupying lesion and a carotid dissection. Dr.

Plunkett testified that Brittney suffered a small volume acute subdural hematoma, in

addition to malignant rapid brain swelling, contusion or bruising at the base of her left

temporal lobe (a contrecoup contusion), and brain herniation.

On rebuttal, Dr. Plunkett explained the manner in which the terminology used by

doctors has changed since 2002 when they describe injuries to a child’s head, believed to

be caused by abuse. Dr. Plunkett testified that forensic pathologists generally use the term

“blunt head trauma” or “closed head trauma” to describe the results or cause of injury.

Pediatricians tend to use the term “abusive head trauma” or “inflicted head trauma.” When

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asked his opinion as to the significance of that change in terminology, Dr. Plunkett

testified, as follows:

In terms of forensic pathologists, it’s an acknowledgment that shaking is anunlikely, if not impossible mechanism for brain injury in an infant. In termsof pediatricians, I can only state what they said in 2008 or 2009, which isthat they have changed the name from Shaken Baby Syndrome to AbusiveHead Trauma because shaking was too narrow a definition of a mechanismof injury.

CONCLUSIONS OF LAW

The power to vacate a judgment of conviction upon the ground of newly discovered

evidence and concomitantly grant a new trial rests within the discretion of the hearing court

(see People v McFarland, 108 AD3d 1121 [4th Dept 2013]; see also People v Tankleff, 49

AD3d 160, 178 [2d Dept 2007], citing People v Salemi, 309 NY 208, 215 [1955], cert

denied 350 US 950 [1956]). The court must make its final decision based upon the likely

cumulative effect of the new evidence had it been presented at trial (see CPL § 440.10 [1]

[g]; see also People v McFarland, 108 AD3d 1121 [4th Dept 2013]; People v Bellamy, 84

AD3d 1260 [2011], lv denied 17 NY3d 813 [2011]).

Criminal Procedure Law §440.10 (1) (g) states that the judgment may be vacated

upon the ground that:

New evidence has been discovered since the entry of a judgment based upona verdict of guilty after trial, which could not have been produced by thedefendant at the trial even with due diligence on his part and which is ofsuch character as to create a probability that had such evidence been

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received at the trial the verdict would have been more favorable to thedefendant; provided that a motion based upon such ground must be madewith due diligence after the discovery of such alleged new evidence.

The new evidence may only be considered if it satisfies all the following criteria:

(1) It must be such as will probably change the result if a new trial is granted; (2) It must

have been discovered since the trial; (3) It must be such as could have not been discovered

before the trial by the exercise of due diligence; (4) It must be material to the issue; (5) It

must not be cumulative to the former issue; and (6) It must not be merely impeaching or

contradicting the former evidence (CPL 440.10 [1] [g]; People v Bryant, 117 AD3d 1586

[4th Dept 2014]; People v Hamilton, 115 AD3d 12 [2d Dept 2014], citing People v Salemi,

309 NY at 216 [1955]; People v Tankleff, 49 AD3d 160, 178 [2d Dept 2007]). Implicit in

the standard, set forth in CPL §440.10 (1) (g), is that the newly discovered evidence must

be admissible (36A Carmody-Wait 2d §205:16).

Pursuant to CPL §440.30 (6), the Defendant bears the burden of proving, by a

preponderance of the evidence, every fact essential to support the motion. The Defendant

must overcome a presumption of validity attending the judgment of conviction and has the

burden of going forward with allegations sufficient to create an issue of fact (36A

Carmody-Wait 2d §205:85).

As to the probability of a different verdict, it is not sufficient that the Defendant

demonstrate that there is a mere possibility that the jury would return a verdict more

favorable to her, if presented with the newly discovered evidence. The proper standard is a

probability that the result of the trial would be changed. (See generally People v Jackson,

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238 AD2d 877 [4th Dept 1997], lv denied 90 NY2d 859 [1997].) By way of example, a

motion to vacate on the grounds of newly discovered evidence would be denied where

there was other, overwhelming evidence of the Defendant’s guilt (34B NY Jur 2d Criminal

Law: Procedure §3390).

The Court, with those considerations in mind, in conjunction with its Findings of

Fact and the legal arguments of the respective parties, hereby concludes, as follows.

The credible and persuasive evidence presented by the Defense established, by a

preponderance of the evidence, a significant change in medical science relating to head

injuries in children, generally, and the Shaken Baby Syndrome hypothesis, in particular,

since the time of the Trial in this matter. New research into the biomechanics of head

injury reveals that the doctors who testified on behalf of the Prosecution at Trial

misinterpreted the medical evidence to conclude that shaking, or shaking with impact, was

the only mechanism capable of causing Brittney’s injuries.

The People disputed the notion that the medical community did not accept the

possibility that a short fall could be fatal until after January 2002. The Court determines,

however, that the Defense established that the mainstream belief in 2001-2002, espoused

by the Prosecution’s expert witnesses at Trial, that children did not die from short falls, has

been proven to be false. As more fully set forth in the Findings of Fact, the Court credited

the testimony of the Defense experts that case studies have demonstrated that children have

died from short falls, that biomechanical research has explained the force produced in falls,

and that advances in imaging have undercut the theory that shaking causes fatal injury

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through the tearing of bridging veins. The Court further determines that the availability of

a text published in 2001 discussing the danger of falls does not undermine the Defendant’s

contention that there has been a sea change in medical belief regarding that danger.

The credible evidence adduced at the hearing also established that doctors view

retinal hemorrhages very differently today than they did at the time of Trial. Even Dr.

Forbes, a Prosecution witness, admitted that the relevant medical community knows more

about retinal hemorrhages in 2014 than it did at the time of Trial. As more fully set forth in

the Findings of Fact, at the time of Trial ophthalmologists believed that only the

acceleration, and deceleration forces generated by violent shaking could cause retinal

hemorrhages. At the hearing, Dr. Forbes agreed that doctors now know that other events,

such as trauma, intracranial pressure, and many other events can cause retinal hemorrhages.

Furthermore, Dr. Forbes conceded that the force generated by a single shake is similar to

the force that would be caused by a fall.

Likewise, the credible evidence adduced at the hearing established changes in the

field of pediatrics regarding head injury in children. In 2001, the American Academy of

Pediatrics published an official paper stating that short falls do not cause the constellation

of injuries, attributed at Trial to shaking. In 2009, the same organization published a new

position paper acknowledging that injures from accidental and abusive causes overlap, and

removing the claim that short falls do not cause symptoms like those observed in Brittney.

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Similarly, in 2001, retinal hemorrhages were presumed to indicate rotational head

injury, but by 2010, the American Academy of Pediatrics recognized that retinal

hemorrhages can have many different causes.

Changes in the field of pediatric radiology concerning Shaken Baby Syndrome was

reflected in the testimony of Dr. Baden and Dr. Barnes, who opined that it is impossible,

relying on current medical knowledge and Evidence Based Medicine standards, to conclude

that Brittney’s injuries were inconsistent with a reported history of a fall from a chair onto

a carpeted floor. Contrary to Dr. Rubio’s determination at the time of Trial that Brittney

was shaken, and her rejection of a short fall as an explanation for Brittney’s death, Dr.

Barnes’ opinion was that Brittney’s injuries were more consistent with a fall to the floor

from an 18 inch chair than they were with shaking.

Although the Prosecution witnesses at the Hearing did not deny that short falls

could be fatal, they countered that fatal, short falls are so rare as to be inconsequential, and

that the injuries sustained by Brittney were not the kind of injuries caused by falls.

The People also challenged the relevance of the Defense argument that the “triad” is

no longer pathognomonic for abuse, inasmuch as the Defense offered no proof that any

medical expert for the Prosecution at Trial ever mentioned the “triad” or considered it to be

dispositive in their diagnostic decision-making. Rather, the People contended that the

medical experts at Trial testified that they considered the history provided by the

Defendant, and Brittney’s parents. In that regard, the Court finds the testimony of Dr.

Barnes to be persuasive, such that in 2001-2002, when treating doctors observed the triad

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of injuries, histories would be rejected unless a caretaker could provide an adequate

explanation for the injuries, such as an automobile accident or a fall from two to three

stories in height.

The Court is mindful of the Prosecution’s argument that, although the Defense

experts opined that the manner of Brittney’s death was an accidental fall from a chair, those

opinions do not constitute newly discovered evidence. Rather, they merely contradict

former opinion testimony given at Trial by the Prosecution’s expert witnesses. The People

further argued that those differing opinions are not new, because the Defendant’s medical

expert at Trial testified that Brittney’s injuries were consistent with a fall from a chair.

Nevertheless, the credible evidence adduced at the Hearing, which was supported

by expert testimony from different disciplines and specialties – pediatrics, radiology,

pathology, ophthalmology, and biomechanical engineering – established by a

preponderance of the evidence that key medical propositions relied upon by the

Prosecution at Trial were either demonstrably wrong, or are now subject to new debate.

The People argued that, even if the Court determined that there is new evidence

regarding the lethality of short falls, it is not probable that a jury would acquit the

Defendant at a new trial based on such evidence. The People posited that the jury would

hear that it is exceedingly rare for a child to die from a short fall, and that the types of

injuries a child suffers in a fatal short fall are different from the injuries Brittney suffered.

Further, the jury would be left to examine that evidence in light of the Defendant’s

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arguably inconsistent version of events and the People’s expert witnesses, who concluded

that Brittney’s injuries were inflicted, rather than caused by a fall.

The Court concludes, however, that in light of current information available to the

medical and other scientific communities, it is unlikely that the Prosecution’s experts at a

new Trial would testify as adamantly, if at all, as they did in 2001, that Brittney’s injuries

were the type caused by shaking, and that they were not the type caused by a short fall (see

generally Cavazos v Smith, __ US __, __; 132 S Ct 2, 21, [2011, Ginsburg, J., dissenting]).

The credible evidence adduced at the hearing established that recent medical and scientific

opinion significantly, and substantially, undermines that 2001 Trial testimony.

The newly discovered evidence in this case thus shows that there has been a

compelling and consequential shift in mainstream medical opinion since the time of the

Defendant’s Trial as to the causes of the types of trauma that Brittney exhibited. Moreover,

the Defense presented evidence that was not discovered until after the entry of judgment, in

the form of expert medical testimony, that a significant and legitimate debate in the

medical community has developed in the past 13 years, over whether young children can be

fatally injured by means of shaking, particularly in consideration of the injuries suffered by

Brittney at her age. Thus, the Court concludes that the evidence is of such character as to

create a probability that it would change the result if a new Trial was granted. (See

generally State v Edmunds, 2008 WI App 33 [2008]).

The Court notes that the due diligence requirement is measured against the

Defendant’s available resources and the practicalities of the particular situation (People v

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Bryant, 117 AD3d 1586 [4th Dept 2014]). Accordingly, the Court concludes that the

Defendant could not have produced such evidence at Trial, even with due diligence, as the

credible evidence adduced at the Hearing demonstrated that the bulk of the medical

research and literature supporting the Defense position, and the emergence of the Defense

position in the medical community, only emerged in the 13 years following her Trial (see

generally State v Edmunds, 2008 WI App 33 [2008]).

Further, the Court determines that the new medical testimony presents an alternate

theory for the source of Brittney’s injuries, and such evidence differs in substance and

quality from the Defense evidence at Trial. The new evidence is material to the issue, and

it is not cumulative , merely impeaching, or contradicting of the former evidence.

The Court thus concludes that the proffered expert witness testimony, concerning

head injuries in children, does constitute “new evidence” as that term is contemplated by

CPL § 440.10 (1) (g). The Defendant’s alternative request to amend the motion to add a

claim pursuant to CPL § 440.10 (1) (c), and to reinstate her claim pursuant to CPL § 440.10

(1) (h), is therefore rendered moot.

In light of the foregoing, the Court need not address whether the proffered

testimony, concerning Sandra Hennessy’s observations of Cameron Burnside’s behavior,

constitutes “new evidence” as that term is contemplated by Criminal Procedure Law

§ 440.10 (1) (g) or, whether it should be considered in support of this motion. The Defense

argued that, unbeknownst to the parties at the time of Trial, for at least two years after

leaving the Defendant’s care, young Cameron was seen by Ms. Hennessy, his subsequent

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daycare provider, to engage in a specific role playing game a couple of times per week.

Cameron would speak to an imaginary friend named, “Brittney,” whom he told to jump and

encouraged her to “do it.” Cameron then would use a particular stuffed animal to comfort

his imaginary friend. Nevertheless, upon consideration of all of the testimony offered at

the hearing from Sandra Hennessy, the Court finds that such testimony was credible, and

compelling, but this Court is not considering that testimony upon reaching its decision in

this matter.

Accordingly, it is hereby,

ORDERED, ADJUDGED AND DECREED, that the Defendant’s motion for an

order, pursuant to Criminal Procedure Law § 440.10 (1) (g), vacating the judgment of

conviction and sentence in this matter, is hereby GRANTED; and it is hereby

ORDERED, ADJUDGED AND DECREED, that the Defendant is hereby

GRANTED a new Trial, on the charge set forth in the above-referenced Indictment, on a

date to be determined by the Court; and it is hereby

ORDERED, ADJUDGED AND DECREED, that the Defendant be brought back

before the Court, forthwith, to schedule a new Trial.

The above constitutes the Decision and Order of this Court.

Dated: December 16, 2014Rochester, New York

S/HON. JAMES J. PIAMPIANO HON. JAMES J. PIAMPIANO COUNTY COURT JUDGE

E N T E R

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